Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 1 of 38 PageID #: 28312
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`Exhibit A
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`

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`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 2 of 38 PageID #: 28313
`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 2 of 38 PagelD #: 28313
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`REDACTED
`REDACTED
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`

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`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 3 of 38 PageID #: 28314
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`Exhibit B
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`

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`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 4 of 38 PageID #: 28315
`Wednesday, April 27, 2022 at 10:16:44 Mountain Daylight Time
`
`Subject:
`Date:
`From:
`To:
`
`Elm v. Samsung: Discovery Issues
`Wednesday, April 6, 2022 at 8:00:15 PM Mountain Daylight Time
`Razick, James
`Nosson Knobloch, Kat Hacker, adam.mortara@bartlit-beck.com, John Hughes, MaPhew Ford,
`Daniel Taylor, Beth Costner, bfarnan@farnanlaw.com, farnan@farnanlaw.com,
`mfarnan@farnanlaw.com, Mailing List - Leedy
`CC:
`ServicePH Samsung-ELM 3DS, apoff@ycst.com, pkraman@ycst.com
`AGachments: image001.png
`
`EXTERNAL EMAIL: Caution with Links and Attachments
`
`Counsel,
`
`We write to follow up on mulYple discovery issues discussed during our March 29 meet and confer.
`
`Mr. Epstein as Glenn Leedy’s Personal RepresentaYve and Mr. Leedy’s Will
`
`Despite Elm’s asserYon that Mr. Epstein is Mr. Leedy’s personal representaYve, it is Elm’s posiYon that it
`does not need to and will not produce documentary evidence to corroborate that asserYon. Thus, Elm is
`maintaining its posiYon that Mr. Leedy’s will—which would bear on whether Mr. Epstein is in fact the
`personal representaYve—is irrelevant and Elm will not produce it. We are at an impasse on this issue and
`intend to bring the dispute to the Court.
`
`Furthermore, you refused to tell us who represents Mr. Epstein in his purported role as Mr. Leedy’s
`personal representaYve and whether Bartlick Beck does.
`
`CompensaYon InformaYon
`
`With respect to Mr. Epstein’s compensaYon, Elm agreed to supplement its response to Interrogatory 4 to
`include payments actually made to Mr. Epstein. Please confirm that you will do so by no later than
`Wednesday, April 13.
`
`With respect to compensaYon flowing to Mr. Leedy’s surviving family members, Elm is maintaining its
`posiYon that this informaYon is irrelevant and is refusing to supplement Interrogatory 4 to provide this
`informaYon. As we have previously noted, this informaYon is relevant because if Elm intends at trial to
`state, offer, or otherwise suggest in any way that any damages award from the liYgaYon would be for the
`benefit of Mr. Leedy’s surviving family members, such as his wife or children, then Samsung is enYtled to
`rebut that argument by idenYfying what porYon would actually flow to them or has flowed to them.
`
`While we understand that Elm was willing to offer a narrow sYpulaYon that it would not explicitly argue
`that damages in this case would go to Mr. Leedy’s family, we understand that Elm reserved the right to
`discuss Mr. Leedy’s background and work—which could include his family and the fact he is deceased.
`Given this reservaYon, we do not believe such a sYpulaYon can adequately cover Samsung’s concerns.
`Furthermore, at the discovery stage, this compensaYon informaYon is relevant, discoverable, and should
`be produced. Thus, we are at an impasse on this issue and intend to bring the dispute to the Court.
`
`Offer Related Documents
`
`Elm confirmed during our meet and confer that it was not going to limit its search for and producYon of
`
`Page 1 of 2
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`

`

`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 5 of 38 PageID #: 28316
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`offer related documents to only those menYoned in ELM3DS00140495. Elm also confirmed that it would
`search for and produce any remaining offer related documents or confirm that none exist in a couple of
`weeks from our March 29 meet and confer. Please confirm that you will produce all such remaining
`documents or confirm that none exist by Wednesday, April 13.
`
`As noted above, we intend to bring the disputes regarding Mr. Leedy’s will and the compensaYon
`informaYon for Mr. Leedy’s surviving family members to the Court and will follow up with the joint
`discovery dispute lePer.
`
`Sincerely,
`James
`
`
`
`
`
`
`
`James Razick | Associate, Litigation Department
`Paul Hastings LLP | 2050 M Street NW, Washington, DC 20036 | Direct: +1.202.551.1877 |
`Main: +1.202.551.1700 | Fax: +1.202.551.0377 | jamesrazick@paulhastings.com
`www.paulhastings.com
`
`******************************************************************************************
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`this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
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`
`Page 2 of 2
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`

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`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 6 of 38 PageID #: 28317
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`Exhibit C
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`

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`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 7 of 38 PageID #: 28318
`3
`1
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`y o u t h a t I ' v e r e a d b o t h t h e l e t t e r s , I ' v e
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`l o o k e d a t t h e a t t a c h m e n t s t o t h e e x t e n t a
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`f a v o r p o i n t e d o u t i n t h e l e t t e r s . A n d I
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`u n d e r s t a n d t h a t a t l e a s t o n e o f t h e s e
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`d i s p u t e s h a s n o w b e e n r e s o l v e d , s o I w i l l
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`t u r n i t o v e r t o S a m s u n g t o s t a r t u s o f f
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`w i t h t h e f i r s t i s s u e . A n d w e ' l l g o i s s u e
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`b y i s s u e . G o a h e a d , c o u n s e l .
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`M S . B R A N N : T h a n k y o u , Y o u r
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`H o n o r . T h e s e t t l e m e n t a g r e e m e n t i s s u e w a s
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`r e s o l v e d . T h e p a r t i e s h a d m e t a n d
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`c o n f e r r e d a b o u t t h a t a n u m b e r o f t i m e s .
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`E l m d i d a g r e e t o p r o d u c e t h a t a g r e e m e n t .
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`S o I t h i n k w e c a n m o v e o n t o
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`t h e s t a n d i n g r e l a t e d d o c u m e n t s . F o r t h o s e
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`d o c u m e n t s , E l m ' s o p p o s i t i o n f o c u s e s o n t h e
`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`
`ELM 3DS INNOVATIONS, LLC, )
` )
` Plaintiff, )
` ) Civil Action No.
`v. ) 14-1430 LPS
` )
`SAMSUNG ELECTRONICS CO., )
`LTD., et al., )
` )
` Defendants. )
`
` United States District Court
` 844 King Street
` Wilmington, Delaware
` Teleconference
` July 21, 2021
` 3:00 p.m.
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`w r o n g i s s u e . S a m s u n g h a s i d e n t i f i e d a
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`s t a n d i n g i s s u e u n d e r R u l e 1 7 ( b ) . A n d i t
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`r e l a t e s t o w h e t h e r R o n E p s t e i n h a s t h e
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`a u t h o r i t y t o m a n a g e E l m ' s a f f a i r s .
`
`R u l e 1 7 ( b ) p r o v i d e s t h a t a
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`c o m p a n y ' s c a p a c i t y t o s u e i s d e t e r m i n e d b y
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`t h e l a w u n d e r w h i c h t h a t c o m p a n y i s
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`o r g a n i z e d . A n d i n t h i s c a s e t h a t ' s
`
`H a w k i n s R e p o r t i n g S e r v i c e
`8 5 5 A r t h u r s v i l l e R o a d , H a r t l y , D e l a w a r e 1 9 9 5 3
`( 3 0 2 ) 6 5 8 - 6 6 9 7 - E M A I L : D a l e H R S @ a o l . c o m
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`4
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`D e l a w a r e l a w .
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`W h e n E l m ' s f o u n d e r a n d s o l e
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`m e m b e r , G l e n n L e e d y , t r a n s f e r r e d h i s
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`i n t e r e s t i n E l m t o h i s t r u s t , h e c e a s e d t o
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`b e a m e m b e r o f E l m u n d e r D e l a w a r e l a w .
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`B u t h e d i d n o t a p p o i n t h i s t r u s t a s a
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`m e m b e r , l e a v i n g E l m w i t h o u t m e m b e r s .
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`U n d e r t h e r e l e v a n t D e l a w a r e
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`l a w i n e f f e c t a t t h a t t i m e , a n L L C w i t h o u t
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`m e m b e r s i s d i s s o l v e d . I t ' s a n d i s s u e t h a t
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`t h e c h a n c e r y c o u r t h a s r e c o g n i z e d u n d e r
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`t h e v e r s i o n o f t h e l a w t h a t w a s t h e r e .
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`A n d D e l a w a r e o n l y a l l o w s c e r t a i n
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`c a t e g o r i e s o f p e r s o n s t o p r o s e c u t e a
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`l a w s u i t o n b e h a l f o f t h e d i s s o l v e d L L C .
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`R o n E p s t e i n d o e s n o t q u a l i f y .
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`S a m s u n g r a i s e d t h o s e i s s u e s t o
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`E l m a n d E l m d i s m i s s e d i t . B u t i t , a l s o ,
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`e x e c u t e d a r a t i f i c a t i o n t h a t c l a i m s s h o u l d
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`r e s o l v e t h e i s s u e s , a p p a r e n t l y r e c o g n i z i n g
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`t h a t t h e r e w a s s o m e c o n c e r n w i t h t h e s e
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`d e f e c t s . T h e r a t i f i c a t i o n r a i s e d a h o s t
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`o f n e w i s s u e s , i n c l u d i n g t h a t G l e n n
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`L e e d y ' s C h i l d r e n s T r u s t , w h i c h w e c a l l t h e
`H a w k i n s R e p o r t i n g S e r v i c e
`8 5 5 A r t h u r s v i l l e R o a d , H a r t l y , D e l a w a r e 1 9 9 5 3
`( 3 0 2 ) 6 5 8 - 6 6 9 7 - E M A I L : D a l e H R S @ a o l . c o m
`07/22/2021 10:06:31 PM
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`a f t e r n o o n t o a l l o f y o u . S o I c a n t e l l
`H a w k i n s R e p o r t i n g S e r v i c e
`8 5 5 A r t h u r s v i l l e R o a d , H a r t l y , D e l a w a r e 1 9 9 5 3
`( 3 0 2 ) 6 5 8 - 6 6 9 7 - E M A I L : D a l e H R S @ a o l . c o m
`Page 1 to 4 of 50
`
`BEFORE: THE HONORABLE JENNIFER L. HALL
` United States Magistrate Judge
`APPEARANCES:
` FARNAN, LLP
` BRIAN E. FARNAN, ESQ.
` and
` BARTLIT BECK, LLP
` MATTHEW R. FORD, ESQ.
` DANIEL TAYLOR, ESQ.
` JOHN M. HUGHES, ESQ.
` For Plaintiff
` YOUNG CONAWAY STARGATT & TAYLOR
` ADAM D. POFF, ESQ.
` and
` PAUL HASTINGS, LLP
` ELIZABETH L. BRANN, ESQ.
` ALLAN M. SOOBERT, ESQ.
` YAR CHAIKOVSKY, ESQ.
` For Defendants
`
`
`
`
`
`
`
`
`
`
`
`Hawkins Reporting Service
`855 Arthursville Road, Hartly, Delaware 19953
`(302)658-6697 - EMAIL: DaleHRS@aol.com
`
`2
`T H E C O U R T : G o o d a f t e r n o o n ,
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`e v e r y o n e . T h i s i s J e n n i f e r H a l l . W e ' r e
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`h e r e o n t h e l i n e t o d a y f o r a d i s c o v e r y
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`d i s p u t e t e l e c o n f e r e n c e . T h i s i s E l m 3 D S
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`I n n o v a t i o n s v . S a m s u n g ; i t ' s C i v i l A c t i o n
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`N o : 1 4 - 1 4 3 0 - L P S .
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`W h o d o w e h a v e o n t h e l i n e f o r
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`P l a i n t i f f , s t a r t i n g w i t h D e l a w a r e c o u n s e l ?
`
`M R . F A R N A N : G o o d a f t e r n o o n ,
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`Y o u r H o n o r . B r i a n F a r n a n o n b e h a l f o f t h e
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`P l a i n t i f f , a n d w i t h m e i s J o h n H u g h e s ,
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`M a t t h e w F o r d , a n d D a n i e l T a y l o r , a l l f r o m
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`B a r t l i t B e c k .
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`T H E C O U R T : G o o d a f t e r n o o n t o
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`a l l o f y o u . A n d w h o d o w e h a v e o n t h e
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`l i n e f o r S a m s u n g ?
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`M R . P O F F : G o o d a f t e r n o o n ,
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`Y o u r H o n o r . A d a m P o f f f r o m Y o u n g C o n a w a y ,
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`a n d w i t h m e f r o m P a u l H a s t i n g s , w e h a v e
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`L i z a B r a n n , Y a r C h a i k o v s k y , a n d A l l a n
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`S o o b e r t . A n d M s . B r a n n w i l l b e a r g u i n g o n
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`b e h a l f o f S a m s u n g .
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`T H E C O U R T : V e r y g o o d . G o o d
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`1 of 20 sheets
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`

`

`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 8 of 38 PageID #: 28319
`5
`7
`Child Trust, now hold all interest in Elm.
`ceases to exist, and the ownership of the
`1
`The ratification is rather summary and it
`patents may have gone wherever they went
`2
`does -- it raises issues for the first
`with respect to state law. But you think
`3
`time.
`Elm got dissolved.
`4
`And so that's a different
`5
`question though about whether or not
`6
`Mr. Epstein has authority to litigate on
`7
`behalf of Elm. I'm struggling as to how
`8
`that has anything to do with standing.
`9
`MS. BRANN: The issue, I think
`10
`it's fair that the Court understands the
`11
`position about the dissolution. That
`12
`occurred because Elm -- I'm sorry, because
`13
`Leedy transferred his interest in Elm to
`14
`his trust. Under Delaware law, that
`15
`results in the dissolution of Elm.
`16
`THE COURT: That part I get.
`17
`MS. BRANN: The second part of
`18
`it of the argument is whether Epstein can
`19
`properly manage this case on Elm's behalf.
`20
`It's an issue of prudential standing under
`21
`Rule 17(b). Elm claims that Epstein can
`22
`properly manage this case, even if Elm has
`23
`been dissolved.
`24
`Hawkins Reporting Service
`855 Arthursville Road, Hartly, Delaware 19953
`(302)658-6697 - EMAIL: DaleHRS@aol.com
`8
`
`And the same concerns that
`Samsung raised about the transfer of
`Leedy's interest to his trust, apply to
`the later transfer of interest from
`Leedy's trust to his Childrens Trust. And
`that is why Samsung is entitled to
`discovery seeking through its motion.
`Samsung already has these
`documents related to Glenn Leedy's trust,
`but now it is merely seeking the same
`discovery into the Childrens Trust. And
`that is why we believe the documents
`should be produced.
`THE COURT: Okay. So let me
`just ask you, so I took your letter to be
`asking for two different things. The
`second part asking about the documents for
`Childrens Trust, I think I understand what
`you're looking for because you have a list
`of what you're looking for. But the first
`Hawkins Reporting Service
`855 Arthursville Road, Hartly, Delaware 19953
`(302)658-6697 - EMAIL: DaleHRS@aol.com
`6
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`But the Delaware Code only
`allows a manager, member, or a person
`approved by a member to wind up in LLC's
`affairs. And Elm has produced no
`documents making Epstein any of those
`things. And so without that, they simply
`don't have prudential standing under the
`federal rules.
`THE COURT: Okay. Did you
`make this argument about 17(b) -- I see
`you did cite it in your letter here.
`Okay. So walk me through how 17(b) is
`related to this? It's about capacity to
`be sued, right? And so it says, "capacity
`to sue or be sued is determined as
`follows." We're talking about Elm's
`capacity to sue or be sued, right, because
`they're the party in this case?
`MS. BRANN: That's right. And
`what it says is it's the law of the state
`under which the LLC is organized, and that
`is Delaware law.
`THE COURT: Okay. And so your
`view is, under Delaware law, whether or
`Hawkins Reporting Service
`855 Arthursville Road, Hartly, Delaware 19953
`(302)658-6697 - EMAIL: DaleHRS@aol.com
`2 of 20 sheets
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`part of your letter you ask for
`communication between Leedy, Epstein and
`any other persons involved with creating
`the trust. So that seems pretty broad
`here.
`
`Can you explain to me why
`those communications are relevant? Is it
`because -- well, can you just tell me why
`you think those communications are
`relevant? It seems like a broad request.
`MS. BRANN: Those are relevant
`to the intent of Leedy in transferring his
`interest to his trust and his -- in the
`intent that Elm claims to give Ron Epstein
`the power to act as the manager.
`And we don't know, currently,
`whether there are any such communications.
`THE COURT: Right. Well, I'll
`ask the other side about that, too, then.
`I'm really struggling to understand where
`you're going with the standing argument.
`So it's not about whether or not Elm has
`standing with respect to the patents. But
`what you're saying is Elm, at some point,
`Hawkins Reporting Service
`855 Arthursville Road, Hartly, Delaware 19953
`(302)658-6697 - EMAIL: DaleHRS@aol.com
`07/22/2021 10:06:31 PM
`Page 5 to 8 of 50
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`

`

`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 9 of 38 PageID #: 28320
`9
`11
`not Epstein can litigate on behalf of Elm
`handful of documents. There would be some
`1
`after it's been dissolved has to do with
`review that would be necessary and
`2
`Delaware law. Is that essentially what it
`privilege redaction or withholding as
`3
`is?
`necessary.
`4
`THE COURT: Okay. So let me
`5
`ask you about the first part of their
`6
`request, which is that they want
`7
`communications between Leedy, Epstein and
`8
`any other persons involved with creating
`9
`the trust.
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`MS. BRANN: That's right. And
`that affects its standings issue.
`THE COURT: Okay. All right.
`Let me hear from the other side on the
`standing issue. Can you start out by
`telling me what the burden is in producing
`these cross instruments and other
`documents, how communications that have to
`do with the Child Trust, is it a big deal
`to produce those?
`MR. FORD: This is Matt Ford
`for Elm, Your Honor, arguing on the
`standing issues. But in terms of the
`documents themselves, if I understood what
`you said correctly, you asked the burden
`in producing the -- did I hear correctly,
`the Childrens Trust?
`THE COURT: The Child Trust
`documents that they asked for the list
`that they set forth on --
`Hawkins Reporting Service
`855 Arthursville Road, Hartly, Delaware 19953
`(302)658-6697 - EMAIL: DaleHRS@aol.com
`10
`
`And I think what I hear them
`saying is, look, Mr. Epstein gave us a
`ratification that talks about what
`Mr. Leedy's intent was. And if there are
`other documents suggesting that's not what
`his intent really was, we ought to have
`those. Are there any such documents?
`MR. FORD: Not to my
`knowledge. But I cannot answer that one
`way or the other in terms of the
`communications that would have occurred or
`whether those could even be produced given
`that they likely would have occurred with
`attorneys.
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`THE COURT: Okay. So we don't
`even know if there are documents
`responsive to their request?
`MR. FORD: No, Your Honor.
`And, quite frankly, as you may have
`noticed from our briefing, we were focused
`on a different issue, other the 17(b)
`issue. I understand what their position
`is here, but generally this has been a
`concern over constitutional standing,
`Article 3. And even the citation directly
`after their one citation, 17(b), concerns
`constitutional standing.
`So this is somewhat of a
`moving target based on the briefing. And
`we haven't examined all of these issues in
`depth prior to this.
`THE COURT: Okay. Yeah, I
`don't blame you for that. I see that they
`cited 17(b), but I didn't catch that at
`all that that's what their argument is.
`Here's what I'm going to say
`about standing, I'm going to ask that Elm
`produce these bullet point documents that
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`MR. FORD: The list.
`THE COURT: Right. It's on
`Page 3 of their letter in bullet points.
`MR. FORD: Well, so in terms
`of the scope of the documents we have, and
`we don't know have an exact number to what
`those would include, but in terms of the
`process for producing them, the Trust
`documents themselves are trusts, so
`they're fairly contained.
`But once we start getting
`beyond that, we get much broader into
`communications regarding their formation.
`So that would include communications with
`lawyers, which, in turn, would require
`privilege review, possibly communications
`with the named inventor's children, who
`are not parties to the suit and are not
`actively involved in Elm, LLC at all, as
`well as perhaps other third parties that
`were involved.
`So we don't have necessarily
`the volume, but in terms of the process it
`will not be a matter of just producing a
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`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 10 of 38 PageID #: 28321
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`are on Page 3, to the extent you have
`think the parties need to talk about what
`1
`them. Because it doesn't look, to me, to
`they're actually looking for, and then you
`2
`be that burdensome to produce. And, in my
`can come back if you've got further
`3
`view, Defendant has made at least a
`disputes on that. Okay?
`4
`threshold argument as to them potentially
`MS. BRANN: Thank you, Your
`5
`being relevant.
`Honor. Can we ask that the documents
`6
`With respect to Samsung's
`produced within seven days and that Elm
`7
`request for communications between Leedy,
`tell us whether it has any of these
`8
`Epstein, and any other persons in involved
`communications within seven days?
`9
`with pleading the trust, I just don't no
`THE COURT: Mr. Ford, what do
`10
`where this is going. I think the first
`you think your position to find out if you
`11
`step is probably for us to find out if
`have these documents? And, by the way,
`12
`there are any such documents. And if
`just to clarify, Ms. Brann, you're looking
`13
`there aren't, then I think that probably
`for documents regarding Mr. Leedy's
`14
`answers what Samsung is looking for, which
`intent, is that what you're looking for?
`15
`is was there any real intent on the part
`MS. BRANN: That's right.
`16
`of Mr. Leedy. But, if there are, then
`THE COURT: Yes. Mr. Ford,
`17
`we'll take it step-by-step here. But
`when do you think you might be able to get
`18
`right now I just don't have enough
`them an answer about whether or not there
`19
`information to make a ruling on this.
`are any such documents?
`20
`Is what I've said so far at
`MR. FORD: We'd ask for three
`21
`least clear enough so the parties know how
`weeks, rather than seven days, to get into
`22
`to proceed?
`that. I mean, if we want to have an
`23
`MS. BRANN: Yes, Your Honor.
`interim where we can update them in terms
`24
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`MR. FORD: Yes, Your Honor.
`of what our inquiry has produced, we're
`This is Matt Ford on behalf of Elm again.
`happy to do that as well. My only
`Is it possible to, as we get through this,
`hesitation is that seven days is pretty
`the biggest issue that I see coming down
`fast to produce -- to both find review and
`the pike is the need to log what are
`produce documents.
`likely to be a number of communications
`THE COURT: All right. Well,
`between attorney and Mr. Leedy. And I
`again, and we don't know if there are any.
`would just ask, of course you don't have
`So give them an update on where you are in
`to rule right now, but that we would be --
`a week to show them you got started
`possibly have the log requirement waived
`looking for them and then produce them
`with respect to these communications.
`within 21 days if you've got them. Okay?
`THE COURT: It seems to me,
`So let's move on to the
`and, again, I don't know your case as well
`question about -- well, I'll let -- these
`as you do, clearly, but wouldn't these
`are questions about the privilege log are
`already be on the log, do you think?
`next and there are at least four separate
`MR. FORD: That's very
`disputes. Go ahead, Ms. Brann.
`possible, yes. Depending, again, search
`MS. BRANN: Thank you, Your
`terms that were run and whether or not
`Honor. Samsung requests for Elm's
`those -- got those search terms hit on
`privilege -- the documents on Elm's
`these types of documents. They may well
`privilege log date back to March. We did
`be.
`an extensive review of Elm's 120 page
`privilege log. It lists over 2,700
`documents.
`And over that time Elm has
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`THE COURT: Okay. I'm not
`going to make any ruling on a log either
`way if you have to or not have to. But I
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`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 11 of 38 PageID #: 28322
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`continued to dribble out documents leaving
`up -- I think it's a sufficient
`1
`us to try to make sense of why one
`description and I think it's -- it's
`2
`document is privilege but another is not.
`certainly on par with the description that
`3
`But the reality is that more still needs
`Samsung has given us on their log.
`4
`to be produced.
`If you look at Exhibit I to
`5
`The first category is
`Elm's letter, we've attached Samsung's
`6
`documents for which Elm has not provided
`log. And for the vast majority of the
`7
`sufficient information to assess the
`documents on Samsung's log, I think 37 out
`8
`privilege claim. Elm has --
`of 47 of them, they also don't provide
`9
`THE COURT: Give me your best
`"from," "to," author information. And
`10
`example of that. Point me to which it is
`their descriptions are even shorter, more
`11
`on the log. I'm looking at Exhibit E to
`terse, than the description that we
`12
`your letter, right?
`provide generally and the specific
`13
`MS. BRANN: Correct. I have,
`description we provided on document 508.
`14
`if you look at entry 508.
`So I think we've -- certainly
`15
`THE COURT: Okay. Okay. I'm
`if you judge what we've done by what
`16
`looking at entry 508.
`Samsung has done, which I think is
`17
`MS. BRANN: And it says
`absolutely fair, I think our log is more
`18
`document, there's no "from," no "to,"
`than sufficient.
`19
`there's no author. And it's just a
`And I'd say just generally,
`20
`document reflecting information made for
`Your Honor, we endeavor to provide as much
`21
`purposes of obtaining legal advice and/or
`information about documents on our log as
`22
`in anticipation of litigation regarding
`we could given what we had. But for a
`23
`potential patent licensing or assertion.
`number of documents, for one reason or
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`another, author, sender, recipient
`information, just wasn't available.
`And so, you know, for those
`documents we provided, you know, what we
`think our adequate descriptions, giving,
`you know, of course relatively high-level
`descriptions of the subject matter of the
`documents and why a claim of privilege is
`appropriate. And so I think that is
`exactly what we did on document 508. It's
`what we did really on all of the more than
`2,000 documents on your privilege log.
`And it's the exact same amount that
`Samsung gave us on their log.
`THE COURT: Okay. So I have a
`couple questions based on what you just
`said. I am looking at your Exhibit I, and
`certainly your privilege description has
`more words than theirs does, and I think
`you could have challenged theirs. But the
`words that they used had analysis, that
`there's something about that document that
`has to do with the patents, which is we
`think it's plausible that it has to do
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`There it's simply not clear
`what exactly is happening here, who
`prepared this. It relates to licensing,
`which overlaps with our next issue. And
`so here we just cannot assess this entry.
`THE COURT: Okay. I
`understand. It makes sense to me. So it
`doesn't say that it's got legal advice on
`it. It says it's been prepared for the
`purposes of obtaining legal advice. And
`you want to know how you can assess
`whether that that's privilege.
`MS. BRANN: Right.
`THE COURT: Let me just hear
`from the other side about document 508.
`MR. TAYLOR: Hello, Your
`Honor. This is Dan Taylor for Elm. We're
`going to have different lawyers address
`different issues, if that's okay with Your
`Honor.
`
`THE COURT: That's fine. Yes.
`MR. TAYLOR: Okay. So
`document 508, I think the first thing I'd
`say -- sorry, I can't pull that document
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`Case 1:14-cv-01430-CJB Document 508-1 Filed 05/04/22 Page 12 of 38 PageID #: 28323
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`with legal advice.
`don't know a couple hundred documents on
`1
`At Document 508 it says that
`here. We didn't know which ones you were
`2
`it reflects information made for purposes
`focused on. We just looked at a couple;
`3
`of obtaining legal advice. How do you
`for example, the first one is Elm
`4
`know that if you don't know who prepared
`privilege 23, and that says it's an
`5
`it? And then based on, I'm looking at the
`attachment to a privileged e-mail. You
`6
`description, it may not have anything to
`took an issue with that. But at least we
`7
`do with a patent licensing or assertion,
`thought, well, does it mean it's attached
`8
`how do I know and how can they assess that
`to No. 22, and isn't that enough
`9
`claim? That's what I'm struggling with.
`information.
`10
`At least for some of these
`But now 508 doesn't look
`11
`other ones, if it has legal advice, even
`anything like 22. I don't know how many
`12
`if it's to or from an attorney or you
`there are like 508. And can you talk to
`13
`don't know who it's from, you can
`the other side about it and try to get
`14
`reasonably say that, yeah, it probably has
`this worked out?
`15
`information from an attorney, but this
`MS. BRANN: We have been
`16
`description doesn't necessarily mean that
`trying to work it out, Your Honor, over
`17
`at all.
`since about March. Their privilege log is
`18
`120 pages long, and we did an extensive
`19
`review to just try to really call out the
`20
`documents. You know, some of them that we
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`did not list, for example, just above like
`22
`No. 2 they say they don't have a "from" or
`23
`a "to," but it's actually in the
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`MR. TAYLOR: No. I certainly
`understand what you're saying, Your Honor.
`I guess what I'd say is if Samsung had
`come to us and say we want to talk about
`508, we could have had that discussion. I
`mean, there are more than 2,000 documents.
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`description. So we tried to call those
`out. You can tell who wrote the document.
`But pulling out the example, I
`believe you pointed to 23, all it says is,
`"attachment to privileged e-mail, Re:
`Discussion with counsel." We don't know
`what that is. And like the Court said, it
`doesn't give us enough information to
`determine that that attachment is, in
`fact, privilege.
`Earlier in the process we did
`identified some non-privileged documents
`that were attached to privileged e-mails.
`The mere fact that something is attached
`to privileged e-mail doesn't make that
`attachment privileged. And so Elm did
`produce those attachments to us.
`But here we just can't assess
`who actually prepared this to even get to
`that stage. So really we're just left
`without much information.
`THE COURT: So let me hear,
`what's the story of Elm? What's the story
`with No. 23 and No. 24? Are those
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`We'd have been